USFWS Announces Changes to Migratory Bird Treaty Act
The United States Fish and Wildlife Service (USFWS) announced they will be making changes to the Migratory Bird Treaty Act (MTBA) and are likely to mix up developers' worlds. The MTBA is the federal regulation that serves as the primary migratory bird conservation tool. The MTBA regulates protected birds, and conservation efforts include environmental permitting requirements, habitat protection, and regulatory/ research bodies. The proposed regulation changes will likely have further protection than the Trump Administration ruling, probably adding additional requirements for developers.
History of the Migratory Bird Treaty Act
In the late 1800s and early 1900s, the increasing popularity of women's hats featuring beautiful feathers was directly responsible for the extinction of numerous species of birds as hunters killed hundreds of thousands to meet the demand. Early bird protection laws aimed at combatting the problem faced constitutional challenges. This fact, combined with the reality that the safety of migratory bird populations could not be guaranteed by a single country acting alone, led the government to turn to international treaties to promote conservation.
In 1916, the United States entered into a treaty with Great Britain (on behalf of Canada) and enacted the Migratory Bird Treaty Act, one of the country's first wildlife conservation laws. Over the years, the USA has entered into similar agreements with Mexico, Russia, and Japan. The MTBA protects all of the birds listed in these agreements.
Today, the United States Fish and Wildlife Service has the authority and the responsibility to enforce the MBTA.
Migratory Bird Protection Under the MTBA
The law makes it illegal to take or kill any listed migratory bird species without a valid permit. "To take" is defined as: "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect." There are 1,027 species of birds protected under the MBTA, 92 of which are endangered or threatened. Additional permitting applies to the MBTA 92 endangered and protected species.
Historically, enforcement of the MBTA concentrated on hunters, trappers, and others who directly assaulted birds. But beginning in the 1970s, USFWS widened its net and began to prosecute industries that "incidentally" killed migratory birds, such as wind farms where tens of thousands of birds are killed each year flying into turbine blades. Other industries whose regular operations - power lines, oil pits, etc. -predictably kill birds became subject to enforcement actions.
The federal courts were split on how the government should treat bird deaths caused by such "incidental takings,” actions that lead to migratory bird death or harm. Whether the MBTA covers "incidental takings" is essential knowledge as violators of the MBTA can face very stiff penalties. The criminal sanctions for violators include fines up to $15,000 and 6 months imprisonment for each bird killed without a permit.
Birds Not Protected by the MTBA
Other state or federal protections may apply to birds not protected by the MTBA. Some bird species may be protected by the Bald and Golden Eagle Protect Act,Endangered Species Act, or other local protections for their significance to the local ecosystem. For example, the MBTA 92 endangered and threatened species receive dual federal protection but there are hundreds of additional species that receive endangered species protection.
Dueling Administrations and Memorandums
On January 10, 2017, the Department of the Interior (DOI) Solicitor's Office issued Memorandum 37041 (M-37041), which interpreted the MBTA's broad prohibition against taking and killing migratory birds to include incidental taking and killing.
M-37041 was quickly suspended pending review, and subsequently, in December 2017, the new Solicitor's Office promulgated Memorandum 37050 (M-37050) that withdrew and replaced M-37041.
M-37050 found that consistent with the act’s text, history, and purpose, businesses that accidentally kill nongame migratory birds during their operations are NOT in violation of the MBTA of 1918.
USFWS Under the Trump Administration
Following this dramatic reversal of policy, on May 16, 2018, the USFWS announced that it was no longer pursuing steps to evaluate the potential environmental impacts of incidental taking of migratory birds under the MBTA. Presumably, they wouldn't need authorization if such actions weren't considered takings.
Current Migratory Bird Lawsuits
Environmental advocates, including the National Audubon Society and Defenders of Wildlife, have filed suit to stop the Interior Secretary from limiting the application and enforcement of the MBTA. The complaint alleges that M-37050 unlawfully strips the agencies of authority to regulate incidental takings, violating the act's plain text, which encompasses actions causing migratory bird death "by any means or in any manner."
In September 2018, Attorneys General from New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, and Oregon filed suit to challenge the move by the Trump Administration to eliminate longstanding protections of migratory birds under the MBTA. Serious consideration of the attorney general's lawsuit will occur, as with the case of National Audubon Society v. Department of the Interior.
Coming Home to Roost
How the law will ultimately be interpreted or changed over time is unclear. As is common with environmental litigation, it is the interpretation and enforcement of the legislation that is as critical as the actual language of the legislation. Until more certainty is established, it is prudent to continue to follow the best management practices developed by USFWS and continue to apply for all applicable permits. These actions should reduce the risk of being prosecuted later for incidental takings.
How the MTBA Impact Developers
Why Developers Should Keep Up with MTBA Regulation
Developers are subject to both state and federal regulations that are constantly changing. Permits and actions once required may no longer be relevant for a site as changes occur. Worse, newly required conservation efforts may come with an expensive mitigation payout for developers unaware of these changes. By staying updated with the changes in federal regulations, developers can speed up their development process and protect their projects. By performing proper environmental due diligence, migratory birds won’t have an expensive, surprise landing on your project site.
UPDATE: Final Rule on Changes to MTBA
On October 4, 2021, the United States Fish and Wildlife Service published the revisions to the Migratory Bird Treaty Act. Incidental take is prohibited under the final rule and given criminal punishment. This final rule is a stark contrast to the Trump Administration, which lacked serious regulation of migratory bird species incidental take.